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The New York “Reproductive Health Act”: Rhetoric and Reality

New York’s broad new abortion law, dubbed the “Reproductive Health Act,” was sold to the public as merely enshrining Roe v. Wade into state law. On the surface, it seems to do just that by extending abortion-on-demand to 24 weeks and allowing for exceptions beyond that point in cases where the fetus is unlikely to survive outside the womb or when “necessary to protect the patient’s life or health.” If the law only codifies what was already federal policy, it seems odd that the governor’s and Assembly’s official statements include multiple quotes praising New York’s “progressive” position on abortion. Perhaps this is a reference to just how “progressive” Roe is; after all, it created a national right to abortion so broad that babies could be killed at the point of birth based on an incorrect diagnosis or a temporary emotional state. But no, there are new abortion “rights” in this new law that put it outside even the realm of Roe, which the people selling the law knew even as they said it was the status quo. New York is again “leading the way,” but should anyone want to follow?

Apparently, Killing Shouldn’t Be a Crime

One notable change in the Act is that all language regarding abortion has been cut from the penal code and the new provisions were moved to the public health law. On a rhetorical level, New York is arguing that abortion is a health care right, even a “fundamental” one, and that as such it should not be considered part of criminal law. On a practical level, this means that, even though elective abortion after 24 weeks remains illegal, there are no legal grounds to prosecute whoever performs such an abortion. What exactly is the enforcement method for the few restrictions on abortion that survive this law? Are we relying on the moral conscience of late-term abortion practitioners to obey a law that shrinks their business yet has no method of enforcement? Consider me skeptical of the value of New York’s legal line in the sand at 24 weeks.

The move to strike any language about abortion or “born-alive infants” from the penal code also removes protection from two groups of children—well, two groups besides the vast number of children already being freely aborted under the law. In the first case, as was argued by opponents of the Act, there is now no law against the “involuntary termination” of a pregnancy, let alone a law against fetal homicide; this means that a woman whose child is killed prenatally in an assault or car accident can’t prosecute the killer in New York state. Supporters of the law attempted to argue that the woman has much better charges available with longer sentences, like felony assault, so it doesn’t matter that there is no law against killing the fetus. By this logic, a shooter who kills one person and injures nine others should only be charged for the one murder; the nine attempted murders don’t matter, since you’ll just get a life sentence under the higher charge anyway.

Why would state representatives say something that flies in the face of basic principles of criminal law? New York is unwilling to say that any injustice was done to the now-dead fetus, because, if it had any right not to be killed, it would be inconvenient for the logic of abortion as social good. They’re willing even to imply that the only right which is being violated is the mother’s right to her bodily integrity, but in that same bill they claim she has “a fundamental right to choose to carry the pregnancy to term.” On their own terms, they should argue that involuntary termination and fetal homicide are acts of injustice against the woman’s reproductive right, not only her right to bodily autonomy. The mother is disallowed by law from seeking justice for her child and is told that it is enough that the state might award justice to her. New York is so gripped by abortion fever that it would rather tell pregnant victims of assault how they should view their assault than grant them the right to seek justice for their murdered children.[Tweet that]

The second group of children in New York that now will get no protection is infants born alive after an abortion procedure. The federal Born-Alive Infant Protection Act only applies to the interpretation of federal statutes and regulations, not state laws like New York’s abortion law and criminal code. The only way federal protection could extend to the states is if the law were interpreted to apply to how “persons” is read in the 14th Amendment, which is unlikely because the Born-Alive Infant Protection Act doesn’t say that it applies to the Constitution. Now we’re left with a state law unwilling to admit personhood to a born child if the circumstance of its birth is an attempted abortion. Instead, it opens the door for doctors to kill such a child to make it a “successful” abortion. The word for that is infanticide. This is not—or at least, it shouldn’t be—a controversial case, but anything interfering with New York’s absolute abortion regime has to go, no matter the implications.

Does It Really Preserve Roe from Reversal?

The Reproductive Health Act was sold as allowing for abortion in case its federal protection is removed by overturning Roe, but it depends upon another court case for the interpretation of its own language. The nebulous “health of the mother” language from Roe made its way into this law, as well. It’s interpreted in the companion case Doe v. Bolton as being almost so broad as to provide no real restrictions on abortion, extending even to mental and emotional “wellbeing.” Let me make it more clear: in New York state, if a woman at 35 weeks is depressed about the prospect of raising a child and wants an abortion, she has a legal right to it. If Roe is overturned, it seems likely that Doe would also be reversed since it uses Roe as precedent. The federal grounds for interpreting the language of the Act would be removed, even though the state would almost certainly keep using the interpretation it likes. New York would then be open to charges that the law is problematically vague or overbroad, which are reasons the Supreme Court might strike down the law. If the Act’s primary purpose is to protect abortion rights from a reversal of Roe, not to radically expand a regime of abortion, maybe it shouldn’t make its language dependent on Roe and Doe.

Abortion for All, Abortion by All

CC Image courtesy of nayrb7 on Flickr. Text has been added to the original image.

New York’s legislature must have felt there was a shortage of abortionists, because the Act also dramatically increases the pool of potential abortion practitioners in the state. At minimum, nurse practitioners can now perform abortions or prescribe abortifacients, and physician assistants can do the same under the supervision (but not necessarily in the presence) of a physician. It is unclear whether or not midwives can now perform abortions, since their practice involves “primary preventive reproductive health care of essentially healthy women,” and abortion may not be considered “preventive” (but this entire law plays fast and loose with terminology, so who’s to say it won’t be?). According to those pushing for the law, this is supposed to ensure that women in rural areas have access to abortion. This treats rural women like they don’t need the same standard of care as women in cities. If someone needs a root canal but lives two hours from the nearest qualified dental surgeon, the state wouldn’t tell the patient to go see the nearest dental assistant for the procedure. Why should there be a lower standard than requiring a trained physician to do a surgical abortion? Of course, according to pro-choice rhetoric, abortions are completely safe and almost never have medical complications. This kind of emphasis on the expansion of abortion access without regard for other considerations like safety and quality control shows how abortion tunnel-vision leads to provisions that endanger women.

Remove Restrictions on Abortion, Increase Them on Pro-Lifers

In case the Reproductive Health Act wasn’t enough trouble on its own, New York passed two companion laws at the same time. The first one, the Comprehensive Contraception Coverage Act, basically enshrines the Affordable Care Act’s contraception mandate as state law. More interesting is the second companion bill, which amends the state’s labor laws to prohibit employer discrimination on the basis of “an employee’s or a dependent’s reproductive health decision making.” Among other things, the “boss bill” prevents employers from firing employees on the basis of getting an abortion or using contraceptives, and it also disallows employers from requiring employees to sign a waiver or other form that would be construed to limit their access to abortion or contraception, even in a voluntary manner. There are no exceptions, religious or otherwise. This means that a pro-life advocacy group in New York cannot require employees to say they won’t get an abortion as a condition of employment. It means a father cannot be fired from a church or religious organization for pressuring his daughter into using emergency contraception or RU-486. The “boss bill” will have the effect of weaponizing anti-discrimination laws against groups who oppose abortion.

A Fundamental Right to Abortion?

There is one more phrase in the Reproductive Health Act which warrants careful consideration. The Act states, “Every individual who becomes pregnant has the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion, pursuant to this article.” The language of “fundamental right” seems like mere rhetoric; it is often flowery and meaningless, and is largely disconnected from the actual provisions of the Act. After all, is the woman who lost a child in miscarriage being denied a fundamental right because she was unable to choose to give birth to her child? And, as noted above, the state isn’t sufficiently concerned about the right to carry a “pregnancy” to term to add a criminal charge to protect that right.

However, this articulation of a “fundamental right” to abortion may be the manner in which New York courts are able to expand abortion availability beyond the already broad bounds of this law. Even Doe v. Bolton declares that “a woman does not have an absolute constitutional right to abortion on her demand.” The Act seems to incorporate similar boundaries by saying that the “fundamental right” to abortion is “pursuant to this article;” which is to say, a woman only has a right to the certain types of abortion laid out in the act. The use of the word “fundamental” in the law instead of the word “absolute” in Doe doesn’t really change the type of right to abortion discussed in both places. A fundamental right can only be abridged when it comes into conflict with another fundamental right; for example, if the fetus is a person, a woman’s right to bodily autonomy would come into conflict with a fetal human’s right to life and one right must win out over the other. If the right to abortion in New York is this sort of fundamental right, then on what equally fundamental grounds does the state restrict a woman’s access to abortion after 24 weeks?

Roe is able to survive its own twisted logic and allow for restrictions on abortion only because it denies that the right to abortion is absolute. The Reproductive Health Act imposes restrictions but states that abortion access is a fundamental right. The restrictions are going to die sooner or later, killed by their own logic. The articulation of a fundamental right to abortion must inevitably lead to a total lack of restriction on abortion. The legislature of New York, partisan as it is, may not have the willpower to articulate such a sweeping law, but the courts have historically been more than happy to do so.

I want to end by looking at what this fundamental right to abortion actually demands. The right being articulated here is not a right to be free of pregnancy, or to refuse the use of your body to someone else, but an active, affirmative right to kill a child in the womb at any time, for any reason. After 24 weeks, fetal humans are considered viable, meaning they can survive outside the womb, with interventions, in over 50 percent of cases. Abortions after this point are killing a child who would likely be able to survive if delivered. Over 1,000 obstetricians, gynecologists, and medical researchers have agreed that no abortion in these circumstances is necessary to save the life of the mother. A right to abortion itself requires giving the option to kill the baby before delivering it when it would be perfectly feasible to deliver the child alive and help it to survive. The right to abortion isn’t the right not to have a baby, it’s the right to have a dead baby, even in situations where you could choose to deliver the baby alive before term. This sounds extreme, because it is. It’s extreme, it’s grotesque, and it’s where the New York law wants to lead the rest of the country (some in Virginia are already trying not only to follow but to take the lead from New York).

New York is right in trying to aggressively pursue progress on abortion, but it is completely wrong about what progress looks like. Progress on abortion is increasing protections for infants and fetal humans—in short, running in the opposite direction of New York as far and as fast as we can.

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Tweet: New York is so gripped by abortion fever that it would rather tell pregnant victims of assault how they should view their assault than grant them the right to seek justice for their murdered children.

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Writer / Researcher

Andrew Kaake (pronounced like “cake”) is a Writer/Researcher at Equal Rights Institute. He holds a bachelor’s degree in classics and political science, cum laude, from Amherst College, where he wrote a thesis on the topic of C.S. Lewis and natural law philosophy. He completed his master’s degree in bioethics at Trinity International University, studying the philosophical underpinnings of controversies about life, death, and technology and trying to create ways to communicate that information to others. During his studies at Trinity, he worked as a research assistant for The Center for Bioethics & Human Dignity.

Andrew wants the pro-life movement to help foster a culture that seeks truth and embraces logical consistency. “What I believe about humanity and personhood clearly impacts what I think about abortion, but it also holds implications for how I should (and, more importantly, shouldn’t) dialogue with other people who disagree with me.”

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